But LHD Lawyers and the class action’s barristers told the court in mid-2018 it lacked jurisdiction to rule on the couple’s claim because, in the lawyers’ view, Fatima was not an Australian resident.
This “concession” was made without the couple’s knowledge, and LHD Lawyers did not tell them they had been shut out of the class action, the court said.
The court said LHD Lawyers also failed to advise the couple they may have been able to bring a claim in the Netherlands. It was now too late to do so.
The couple discovered the class action had been settled in mid-2019 “through an online media report”, Justices Bernard Murphy and Craig Colvin said.
At this time, they believed they were still part of the class action and, “to add insult to injury”, LHD initially refused to give them more information.
The judges said the case had gone “badly off the rails”, and the family was “badly let down” in the “heart-breaking” case.
LHD and Sydney barrister John Rowe could not abandon the couple’s claim without conferring with them, the judges said.
They said the situation of a QC, Christopher Barry, was different because he was acting only for the class action’s lead applicant. However, they said Mr Barry could “only make a concession to effectively abandon [the family’s] claim if he appeared on their behalf”.
The Full Court said the couple remained members of the class action, paving the way for them to bring an amended claim for damages against Malaysia Airlines.
The factual issue of Fatima’s place of residence would be agitated during any trial.
The Dyczynski family told the Herald their daughter was “a promising aerospace engineer” and was “the cause of all our steps related to justice”.
The family said that “in this process of seeking justice we have to focus on Malaysia Airline System Berhad and their negligence in the Flight of MH17 on 17 July 2014, for [which] … Malaysia Airline still has to apologise”.
In a separate judgment, Justice Michael Lee said the Dyczynski family had “suffered a calamity difficult to comprehend”.
He said the couple’s claim may fail “but that is not the point” because they were entitled to be heard and have lawyers “act in accordance with their informed instructions”.
Justice Lee said it was “a matter of profound regret” that until law firm Banton Group stepped in to act for the family pro bono they had been let down by their lawyers.
Amanda Banton, managing partner of the newly-established Banton Group, said the case was a great victory for a family who had suffered severe tragedy and the firm was “very pleased with the outcome for our clients”.
Barrister John Rowe said he accepted the court’s “well founded” criticism of the lawyers’ failure to obtain instructions.
He said that while it was not an excuse for failing to obtain instructions “the reality is” the couple did not have a claim. However, the court said the family’s evidence had not been examined and they were entitled to their day in court.
Mr Rowe said Mr Barry “had no direct contact” with the family and “the lawyers involved are deeply concerned that their action has aggravated the grief suffered by the appellants following the tragic death of their daughter”.
LHD Lawyers said it acknowledged the court’s criticisms and it had “seriously let down” the Dyczynski family.
“LHD sincerely apologises to Dr and Mrs Dyczynski,” the firm said.
It had “commenced a full review of the practice group responsible for this matter, including the actions of senior and junior counsel”, and the lawyer who led the case “has been stood down until the review is complete.”
The families of two other MH17 passengers may be affected by the decision. The court ordered that their representatives be given a copy of the judgment.
Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.